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Some Closing Thoughts on the Protection of Law

I’ve been defending a kind of reasoning, not any particular court decision. Thus it’s a bit beside the point to argue that the Court decided, say, Lawrence v. Texas, or Kelo v. New London, or even Dred Scott, rightly or wrongly. The point is that the Due Process of Law Clause requires courts to analyze whether the infringement on a person’s life, liberty, or property has been done in a lawful or non-lawful manner—and in making that decision, the court cannot avoid the ultimately value-laden analysis of whether the government’s act includes those elements (generality, rationality, public-orientation, and so on) that distinguish law from a mere act of force.

Ultimately, even many of those who say that the Due Process Clause only promises procedural protections are still doing just this analysis. Even those who think that the Clause only protects your right to a trial, for example, would probably concede that a coin-toss is not a “trial.” Why not? Because it’s arbitrary: it lacks the elements of fairness that make something a trial. And look at Prof. Rosenthal’s comments on Lawrence and Kelo. The statute in Lawrence, he argues, was not arbitrary, and neither was the condemnation in Kelo. I disagree, of course, but this is a substantive due process argument; the point is that the Due Process of Law guarantee requires us to have just that debate.

The reason is that the basic seed of everything we call “the rule of law” is the recognition of a gap between Law and the ruler’s Will. As in the famous Euthyphro dilemma, when such a gap is recognized, there must be criteria for determining which of the ruler’s actions do, and which do not, qualify as law. People can then deliberate about those criteria, and attempt to apply them in principled ways. And as that regime becomes more complicated, those criteria will interact in a matrix of increasing complexity. Some of these “rules of recognition” can be called procedural (a bill must receive a majority vote in both houses) and some can be called substantive (no bill establishing a religion is valid), but either way, in determining whether the government act qualifies as a “law” will require at least some determination of what law really means. And as Lon Fuller so beautifully explained, that is a question that can’t be answered without resort to normative considerations—many of which will be implicit, unspoken but inherent restrictions on the lawmaker’s power. That, in turn, means the judges, whoever they are, must make some value-laden decisions about what sorts of government acts do and do not deserve the appellation “law.”

Sadly, in modern times, it’s popular to declare that law simply is the will of the ruler, and that any more nuanced understanding of the subject is just an intellectually dishonest game, and one that clashes with democratic values. It’s sad that such simplistic cynicism is taken as a serious intellectual position, since as a matter of logic, it cannot be the case that the will of the ruler is the law. Take my still-unanswered question about whether an unintelligible statute is law. Where law is identified with the will of the ruler, the ruler becomes a kind of solipsist; power becomes an undifferentiated, impenetrable mass, making discussions over legitimacy and lawfulness literally impossible.

Consider some of the great literary depictions of lawful versus arbitrary rule. In the classic Twilight Zone episode “It’s a Good Life,” the villagers are governed entirely by Anthony’s will. Their society may be called many things, but it cannot rightly be called a lawful rule. Neither can the hellish village of Shirley Jackson’s “The Lottery,” even though it is governed by a regular, orderly procedure—a procedure that is utterly arbitrary and unreasoned, and exists solely because it’s always been that way. In both of these stories, law is a mere command, ultimately the ruler’s senseless ipse dixit. When the ruler governs by mere will, he may call his decrees “law,” but they are not law in fact—they are not general principles relating to the public good. By contrast, we see in The Oresteia the beginnings of lawful rule in the marriage of the passions with reason—not the domination or command of the passions, but a marriage, presided over by Athena and conducted through the medium of Persuasion. This is crucial, because law contains an element of reciprocity and of at least rough equality. Law is not an order; it is a promise. It is not mere will; it is reason. As Aristotle said, a lawful government “ha[s] a regard to the common interest [is] constituted in accordance with strict principles of justice,” whereas “those which regard only the interest of the rulers are all defective and perverted forms, for they are despotic, whereas a state is a community of freemen.”

Our Constitution was written light of this difference between lawful and non-lawful rule. It’s an attempt by the people to give law to themselves; an effort by the people to bind themselves while exercising their own power at the same time. That’s a paradox, but the framers attempted to resolve it with a multilayered process whereby the people indirectly choose judges and entrust them with the duty of enforcing the Constitution even when the people themselves might not want it enforced. Calling them “unelected judges subverting the will of the people” is really a demagogic way of mischaracterizing what judges do in such cases. Yes, they make wrong decisions—sometimes even corrupt ones. But that doesn’t mean the theory of substantive due process, an idea at the heart of so much that is great in the common law tradition, deserves to be treated with contempt and ridicule.

Also from this issue

Lead Essay

Timothy Sandefur argues that the phrase “due process of law” is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. “Citizens are entitled to procedures only because they are entitled to lawful treatment,” Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Response Essays

Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. “The First Amendment expressly limits the scope of legislative power,” he writes, “[but] the Due Process Clause does not.” Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn’t necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of “due process of law” did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.

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